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(148 N.E.)

App. 244; Hollis v. U. S. Glass Co., 220 Pa. ( 3. Trial 296(2)-Instruction on acknowl49, 69 A. 55.

[4] In this statement the attorney for the plaintiff went outside the record and brought before the jury something not in evidence and highly prejudicial. Comments upon matters not in evidence which are prejudicial, made by attorneys during the course of argument, should be disapproved by the court at the time. Burns v. State, 75 Ohio St. 407, 79 N. E. 929.

It is reversible error for a court to refuse to instruct a jury to disregard prejudicial statements made during arguments upon matters not in issue in the case. Miller v. State, 73 Ohio St. 195, 76 N. E. 823. This rule obtains in civil as well as in criminal cases. 38 Cyc. 1479 and 1494, and cases cited.

The instruction to disregard the statement should have been given. The judgment will be reversed, and the cause remanded for new trial.

Judgment reversed, and cause remanded.

edgment of illegitimate child not objectionable, in view of other instructions.

In partition, where plaintiff claimed as an illegitimate child acknowledged by decedent to be his, an instruction, after calling attention to the fact that evidence was introduced tending to show that decedent had made statements that plaintiff was not his, that the jury could consider all the evidence on this subject in determining whether decedent at any time after his marriage acknowledged plaintiff as his child, was not objectionable as failing to state that the jury must consider all the acts and declarations of decedent relating to this subject, in view of other instructions supplying these omissions.

4. Bastards 13-Statute does not require acknowledgment to be made after marriage.

Burns' Ann. St. 1914, § 3001, providing, if child and acknowledge it as his own, such child a man shall marry the mother of an illegitimate shall be deemed legitimate, does not require that such acknowledgment be made after marriage or before its severance by death or otherwise; hence, in partition, where plaintiff claim

JONES, MATTHIAS, DAY, ALLEN, KIN- ed as an illegitimate child acknowledged by deKADE, and ROBINSON, JJ., concur.

CASTOR v. McDOLE. (No. 11416.)*

(Appellate Court of Indiana, Division No. 2. Jan. 30, 1923. Rehearing Denied. Transfer Denied.)

1. Bastards

105-Illegitimate child inherits, If acknowledged at or after marriage. Where a man marries the mother of an illegitimate child, and at the time or afterwards acknowledges the child as his, it may inherit a portion of his estate the same as if born in wedlock, even though, either before or after such acknowledgment, he denied that it was his

child.

2. Bastards 105-Acknowledgment of illegitimate child, once made, not affected by denials.

Where, in partition, in which plaintiff claimed to be an illegitimate child, but acknowledged by decedent as his, an instruction, after calling attention to the fact that evidence had been introduced tending to show that decedent had made statements that plaintiff was not his child, that the jury had the right to consider all evidence on this subject in determining whether decedent at any time after his marriage to the mother acknowledged plaintiff as his, and that if it was found he had at any time at or after marriage acknowledged her as his own, denials made by him at other times would not affect such acknowledgment, if once made, was not reversible error.

*REPORTER'S NOTE.-This case as originally filed, was published in 137 N. E. 889. Since this filing and publication, changes in the opinion have been made, which, while not affecting the merits of the decision, make it necessary, in the interest of our subscribers, to reprint the case here.

cedent, an instruction authorizing consideration of statements made by decedent after the death of his wife was not error, as contradicting sections 8362, 8373.

5. Marriage

13-Statutes held not to apply to common-law marriage.

Burns' Ann. St. 1914, §§ 1060, 1062, have reference only to void and voidable marriages, and not to legal marriages; hence have no application to common-law marriages, which are in fact legally entered into. 6. Bastards

8-Instruction limited statements as to legitimation to questions of marriage and birth.

In partition, where there was an issue as to whether plaintiff was an illegitimate child and acknowledged by decedent, an instruction that the jury could take into consideration all the statements and representations of deceased members of the family, related by blood or marriage to decedent, of and pertaining to his marriage with plaintiff's mother, held to limit such statements to the questions of marriage and birth, and was not referable to statements of other persons as to whether decedent had, acknowledged plaintiff as his child.

7. Witnesses 167-Witness claiming from deceased ancestor not competent to impeach other witness as to ancestor's statements in her presence.

Where, in partition, defendant claimed as heir, under Burns' Ann. St. 1914, §§ 521-523, she was not competent to testify to statements alleged to have been made by decedent, for the purpose of impeaching a witness for plaintiff, and was bound by witness' statements that the conversation referred to was had in the presence of deceased.

8. Witnesses 128-Partition suit within
statute prohibiting evidence by party as to
matters occurring prior to ancestor's death.
A suit for partition is an action by and
against heirs, and affects the property of an

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ancestor, and is within Burns' Ann. St. 1914,
§ 522, providing, in suits by or against heirs or
devisees, founded on a contract with an ances-
tor to obtain title to real property, neither par-
ty shall be a competent witness as to matters
which occurred prior to the ancestor's death.
9. Evidence 291-Evidence of statements
of mother as to the father of her children
held competent.

In partition, where plaintiff claimed as an illegitimate child acknowledged by decedent to be his, evidence of a statement by plaintiff's mother that she had made a "mistake in her life, and that she was never married to John

son, but did marry Eli Stern (decedent)," and "that said Eli was the father of her children,"

was competent.

10. Evidence 291-Rule as to declarations of deceased persons in proof of pedigree stated.

Proof of pedigree is restricted to declarations of deceased persons, who were related by blood or marriage to the person whose parentage is the subject of investigation, and the

statements of an ancestor or deceased kinsman are not to be regarded as separate and distinct conversations, but are to be taken as a connected and indivisible thing, indicating the treatment of the person whose pedigree was in dispute.

II. Appeal and error 1050 (1)—Admitting clerk's certificate that no record of marriage license existed in his office, if error, harmless. Admitting in evidence certificate of the clerk of a county in a foreign state to the effect that there was no record in his office of a marriage license issued, without showing that there was any law in that state for the recording of such license, if error, was harmless.

12. Appeal and error 1060 (1)—Argument of counsel that defendant was competent witness to deny certain statements, but did not, held not reversible error.

In partition, where plaintiff claimed as an illegitimate child of decedent, her counsel's argument, quoting testimony of a witness to the

effect that before decedent's death he had a conversation with defendant in the absence of decedent, in which she said the Lord had been good to her because decedent had made no will, a matter on which defendant was competent to testify, but did not, held not reversible error.

13. Appeal and error 1060(1)-Jury not misled by counsel's argument as to relationship of party at whose house child was born. In partition, where plaintiff claimed as an illegitimate child of decedent, but acknowledged by him on marriage to her mother, argument of counsel stating that plaintiff was born at the house of a sister-in-law of decedent, and that she was born at the home of M., "who was a sister-in-law by marriage of Eli Stern (decedent), and who knows but that Eli Stern paid her expenses there" when plaintiff was born, held, in view of evidence, not misleading, and not such misconduct as required reversal. Appeal from Circuit Court, Henry County; Fred C. Gause, Judge.

Action by Georgianna McDole against Elizabeth Castor. From a judgment for plaintiff, defendant appeals. Affirmed.

Meade Vestal, of Noblesville, Robert S. Hunter, of New Castle, and Gentry, Cloe & Campbell and Shirts & Fertig, all of Noblesville, for appellant.

Thomas E. Kane, of Noblesville, Geo. D. Forkner, of New Castle, and Bagot, Free & Pence and Diven, Diven & Campbell, all of Anderson, for appellee.

MCMAHAN, J. This is an action by appellee against appellant for partition of real estate, for an accounting of rents and profits, and to quiet title. Trial by jury resulted in a verdict for appellee, that she was the owner of an undivided one-half of the real estate, and for $1,000 damages, and quieting her title.

Appellant appeals, and assigns as error the overruling of her motion for a new trial.

Eli Stern died intestate in 1920, the owner of the real estate in controversy. His wife, Mary Stern, who was the mother of appellant and appellee, died in 1914. Appellee claimed that she was an illegitimate child of Mary Fry; that after her birth Eli Stern married her mother and acknowledged her as his child. Appellant is the legitimate child of Eli Stern and his wife, Mary. There being no contention that the verdict is not sustained by the evidence, we will not undertake to review or to set out the evidence, any further than may be necessary in discussing the contentions relied on by appellant for re

versal.

[1] Appellant's first contention is that the court erred in giving instructions Nos. 8 and 9.

By the eighth instruction the jury was told that, if it found from the evidence that appellee was the illegitimate child of Mary Fry, that Eli Stern married her mother, and that he, at or after the marriage, acknowledged appellee as his child, she would be entitled to inherit a portion of his estate, the same as if she had been born in wedlock to him and his wife, even though the jury should find that at another time or times, either before or after such acknowledgment, he denied she was his child, or even though the mother had denied that she was illegitimate or that she was begotten by a former husband by the name of Charles Johnson.

after calling attention to the fact that evi[2] By the ninth instruction the court, dence had been introduced tending to show that Eli Stern had made statements that appellee was not his child, instructed the jury that it had the right to consider all the evidence upon this subject in determining whether or not he had at any time after his marriage to the mother acknowledged her as his child, and that if the jury found he had at any time at or after his marriage to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(148 N.E.)

the mother acknowledged her as his own, de- | a common-law marriage without any license nials, if any, made by him at other times of such acknowledgment, could not affect such acknowledgment if once made.

Appellant says each of these instructions is erroneous because there was no evidence that he acknowledged appellee as his child at the time he married her mother. Conceding that there is no evidence that Eli Stern made such an acknowledgment at the time of the marriage the giving of these instructions would not be reversible error. There is some question under the evidence as to whether any marriage other than a common-law marriage ever took place between Eli Stern and Mary Fry. If they were married only under the common law, it would be rather difficult to tell just when that marriage actually took place.

and without any legal solemnization thereof, but that in order to make such a marriage a legal marriage, so as to legitimatize children, it must be entered into in good faith between the parties, and be accompanied by such cohabitation and circumstances as will show that the parties in good faith entered into a marriage contract, and that such contract was not entered into for the purpose of veiling or concealing illicit intercourse.

Appellant contends that this instruction contradicts section 8373, Burns' 1914 (section 5330, R. S. 1881), which provides that:

"No marriage shall be void or voidable for want of a license or other formality required by law, if either of the parties thereto believed it to be a legal marriage at that time."

The intent of the Legislature as expressed in this section was to make it clear that the failure to procure a license, to have the marriage formally solemnized, or the failure to take any other formal step required by the act of which this section is a part, would not render a statutory marriage void or voidable, if either of the parties thereto at the time of such marriage believed it to be a legal marriage. The purpose in view was not to change or affect the law as to what was nec

[3] A further objection made to instruction No. 9 is that it tells the jury it had the right to consider all the evidence on the subject in determining whether he ever acknowledged her as his child. The contention is that the court should have told the jury that it must consider all the acts and declarations of Eli Stern relating to this subject. We do not think the instruction objectionable, in view of the fact that the court did in other instructions specifically tell the jury that it must consider all the acts and declarations of Eli Stern on the question of acknowledg-essary to constitute a common-law marriage,

ment.

[4] The next contention is that instruction No. 11 is erroneous, because it told the jury it had the right to take into consideration, in determining whether appellee was illegitimate, all the statements and declarations of Eli Stern concerning appellee and his relations with her mother. It is argued that this was erroneous, because it authorized the jury to take into consideration statements made by Mr. Stern after the death of his wife, that such statements were not admissible on the subject of appellee's legitimacy, because the family relationship did not exist between him and the mother after her death, and that his statements after the mother's death were no more admissible on this question than if he had never married the mother.

or to provide a rule of evidence as to what was or was not necessary to be proved to establish a common-law marriage. The "other formality" mentioned in the statute concerning a statutory marriage similar to that found in section 8362, Burns' 1914 (section 5327, R. S. 1881), which requires the parties to procure a license. We fail to find any prejudicial error in the giving of this in

struction.

[6] Appellant contends that instruction No. 29 told the jury that in determining the question of whether appellee was the illegitimate child of Mary Fry, and whether Eli Stern subsequently married the mother and acknowledged her as his child, it had the right to take into consideration the statements of deceased members of the family related by blood or marriage to Eli Stern of and pertaining to said marriage, which had been introduced in evidence. The contention of ap

The statute on this subject (section 3001, Burns' 1914; section 2476, R. S. 1881), provides: "If a man shall marry the mother of an il-pellant that this instruction authorized the legitimate child, and acknowledge it as his own, such child shall be deemed legitimate."

The statute does not expressly require that such acknowledgment shall be made after the marriage and before its severance by death or otherwise. Whether such acknowledgment can be made before as well as at or after the marriage is an open question in this state. See Haddon v. Crawford (1912) 49 Ind. App. 551, 560, 97 N. E. 811.

[5] By instruction No. 26, the jury was told that persons may engage in what is known as

jury to take into consideration the statements of deceased members of the family, of and concerning said marriage and birth, in | determining the question of acknowledgment, is not well taken. The consideration of such statements was limited to the questions of marriage and birth. Statements of such persons as to whether Eli Stern had or had not acknowledged appellee as his child were not referred to in this instruction.

Appellant also contends that the court erred in giving other instructions; but after a careful examination of all the instructions

given we find no reversible error in any of, and the court, in disposing of this objection, them.

[7, 8] Appellant testified as a witness in her own behalf as to certain matters which occurred after the death of the father. One William Green had testified as a witness for appellee, and on his cross-examination he was asked whether, prior to the death of Ell Stern, he had not made a certain statement. This statement, if made, would have had the effect of impeaching the witness and weakening the testimony he had given. The witness having denied making the statement, appellant was asked whether Mr. Green had made the statement to her. An objection to her testifying upon this subject, on the ground that she was not competent to testify as to any matter that had occurred prior to the death of the ancestor, was sustained. She was also asked whether she had had a conversation with her mother, in the absence of the father, about appellee, as to who was her father. An objection being made, she offered to prove that her mother stated to her that Charles Johnson was the father of appellee. The court also refused to permit her to prove that she had a conversation with her father, in which he said the report that he was the father of appellee was false.

Section 522, Burns' 1914 (section 499, R. S. 1881), provides that:

"In all suits by or against heirs or devisees, iounded on a contract with or demand against the ancestor, to obtain title to or possession of property, real or personal, of, or in right.of, such ancestor, or to affect the same in any manner, neither party to such suit shall be a competent witness as to any matter which occurred prior to the death of the ancestor."

A suit for partition is an action by and against heirs, and affects the property of the ancestor. It has been frequently held, in actions for partition, that a party claiming the land is not a competent witness to testify against the other party. Wiseman v. Wiseman (1880) 73 Ind. 112, 38 Am. Rep. 115. Appellant cites Denny v. Denny, Ex'r (1890) 123 Ind. 240, 23 N. E. 519, in support of her contention that she was competent to impeach the witness Green, and De Haven v. De Haven (1881) 77 Ind. 236, in support of the proposition that she was competent to testify on the question as to whether her father had acknowledged appellee to be his

child.

In the De Haven Case the appellee was claiming to be an heir of Isaac De Haven, deceased, and as such entitled to a share of his estate. The appellants in that case, while examining one of their witnesses, asked him the question: "State what you know, if anything about your father ever recognizing Betsey as his child." Appellee's objection that the question was leading was sustained by the trial court, and on appeal this was held error. The only objection suggested was that the question was leading,

said:

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The question indicates that the witness was a child of the deceased ancestor, through which the appellant and appellee were claiming. We have taken occasion to examine the record in that case, and from it we find that the witness was not only a son of the deceased ancestor, but that he was party to the issue being tried, that he had not been called by the adverse party, nor was he required to testify by the court trying the cause. It would therefore seem that the witness was incompetent to testify under the provisions of 2 R. S. 1876, p. 133, which provided that:

"In all suits by or against heirs, founded on a contract with or demand against the ancestor, the object of which is to obtain title to or possession of land, or other property of such ancestor, or to reach or affect the same in any way, neither party shall be allowed to testify as a witness as to any matter which occurred prior to the death of such ancestor, unless required by the opposite party or by the court trying the cause.

This provision of the statute evidently was not called to the attention of the court, nor was there any objection to the competency of the witness. Had such an objection been made, and had the attention of the court been called to the statute, we doubt whether the court would have used the expression, "and we see no other even plausible ground of objection." Such statement is clearly obiter. We do not, under the circumstances, think that case can be recognized as an authority in support of the claim that appellant was competent to testify to any matter which occurred prior to the death of the ancestor over an objection properly and seasonably made.

Section 523, Burns' 1914 (section 500, R. S. 1881), provides among other things:

"If any witness shall, on behalf of the executor, administrator, or heirs, testify to any conversation or admission of a party to the suit, his assignor or grantor, as having been had or made in the absence of the deceased, then duced, his assignor or grantor, shall be compe the party against whom such evidence is adtent to testify concerning the same matter."

The witness Green had not testified to the conversation with appellant, and inquired about, having been had either in the presence or in the absence of the deceased. He denied that such a conversation took place, and appellant is no more competent to testify that such a conversation did take place than she would be if the witness had testified to a conversation which he claimed was in the pres ence of the deceased, and it is well settled that in such cases the opposite party is bound

(148 N.E.)

by the statement of the witness that the conversation was had in the presence of the deceased. Kibler, Adm'r, v. Potter (1895) 11 Ind. App. 604, 39 N. E. 525, and authorities cited.

If the witness Green had testified to a conversation which he had with appellant in the absence of the deceased, appellant would have been a competent witness to testify as to that conversation. Guthiel v. Dow (1912) 177 Ind. 149, 97 N. E. 426; Copeland V. Koontz, Adm'r (1890) 125 Ind. 126, 25 N. E. 174; Martin v. Martin (1889) 118 Ind. 227, 20 N. E. 763; Atkinson v. Maris, Adm'r (1907) 40 Ind. App. 718, 81 N. E. 745; Nelson v. Masterton (1891) 2 Ind. App. 524, 28 N. E.

731.

In Denny v. Denny, supra, the appellee had filed a claim against the estate of her deceased husband, and had testified as to an alleged

conversation between herself and one of the heirs. The heir claimed that the conversa

tion took place in the presence of the dece

to impeach the witness Green, and thus allow her to testify to such conversations and statements which she might claim Green made to her, when he had not testified to such conversations, but had denied that any such conversations were had, it would permit her, through the guise of the cross-examination of a witness, to build up a straw man, in the way of conversations that had never taken place, and then to go upon the witness stand and testify to such alleged conversations. Such a holding would break down and destroy the statute. If the witness Green had testified to a conversation which he claimed he had with appellant in the absence of the ancestor, appellant would, under section 523, Burns' 1914, supra, have been a conversation. She would not, however, have competent witness to testify concerning that been a competent witness to testify to some

other conversations, which she may have

claimed she had with Green, and which he

had not testified about.

If Denny v. Denny, supra, is to be constru

dent. It was held that this did not render the claimant incompetent, under section 498, R. S. 1881 (section 521, Burns' 1914), to tes-ed as holding that appellant was a competify concerning the matter. "The conversation," said the court, "having occurred between the claimant and one of the heirs, it

was not a matter which occurred with the

testator during his lifetime, within the meaning of the statute, nor did the conversation relate to the matter or transaction upon which the suit was predicated. It had no reference to the money here in controversy." The opinion fails to state what the witness had testified to or whether it was in rebuttal

or otherwise.

Section 521, Burns' 1914, supra, provides that in suits or proceedings in which an executor or administrator is a party, involving matters which occurred in the lifetime of the decedent, where a judgment or allowance may be made or rendered for or against the estate, any person who is a necessary party to the issue or record, whose interest is adverse to such estate, shall not be a competent witness to such matters against the estate. It appears that the things about which such witness is not competent to testify are the matters involved in the suit or proceedings which occurred during the lifetime of the decedent. Section 522, Burns' 1914, supra, is broader than section 521, Burns' 1914, supra, and does not limit the incompetency of the witness to the involved "matters which occurred during the lifetime of the decedent," but provides that the party shall not be a "competent witness as to" any matter which occurred prior to the death of the ancestor.

This section rendered appellant incompetent to testify as to "any matter" which occurred prior to the death of her father, and we do not feel that we can justify ourselves in overruling the plain words of the statutes. If we should hold under the facts in this case that appellant was a competent witness

tent witness to contradict or impeach the witness Green, by testifying that a conversation took place, the taking place of which had been denied by Green, or to testify to the alleged conversations with her father and mother, it is certainly not in harmony with the more recent cases of Copeland v. Koontz, supra, and Guthiel v. Dow, supra. said by the court in the Copeland Case, 125 Ind. at page 129, 25 N. E. at page 175:

As was

its letter as well as by its spirit, limits the liv"Hence the statute under consideration, by ing party, in his testimony, to the conversation or admission about which the witness called against him may testify."

Said section 522, Burns' 1914, supra, rendered appellant incompetent to testify as to "any matter which occurred to the death" of her father, subject to the provisions of section 523, Burns' 1914, supra. We therefore hold there was no error in refusing to permit appellant to testify as to matters about which she was interrogated.

[9] Appellant contends that the court erred in permitting a witness to testify concerning a statement made by the mother of appellant and appellee, wherein the mother said she had made a "mistake in her life, and that she was never married to Johnson, but did marry Eli Stern; that said Eli was the father of her children." Appellant concedes that declarations of deceased members of a family are competent to prove pedigree, but says that whether the declarations offered were trustworthy, and whether necessity existed for their admission, were questions for the court, and which the trial court wrongly decided.

In U. S. v. Sanders (1847) 27 Fed. Cas. 950, No. 16,220, Hempst. 483, it was held that the declarations of a father as to the maternity of a child were admissible and competent evi

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